IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Coleman, 2011 NSPC 18
Date: March 21, 2011
Docket: 2074546
Registry: Annapolis Royal
Between:
Her Majesty The Queen
v.
Craig Allen Coleman
Judge: The Honourable Judge Timothy Gabriel
Heard: January 19, 2011, in Annapolis Royal, Nova Scotia
Oral decision: March 21, 2011
Charge: CDSA 5(2)
Counsel: Stephen I. Cole for the Crown
Phillip J. Starr, Q.C. for the Defence
By the Court:
[1] The accused is charged that on or about the 3rd day of June,2009 , at or near Nictaux, Annapolis County, Nova Scotia he did unlawfully possess cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, and did thereby commit an offence under section 5(3) thereof.
[2] Certain agreements were made by counsel at the outset. Most importantly, counsel agreed that on June 3, 2009, at 9282 Highway 10 Nictaux, Annapolis County, Nova Scotia, (which is the address of both the accused and his mother, Pam Coleman,) the police, acting pursuant to a search warrant granted earlier that day, seized a quantity of cocaine.
[3] It remains to be determined whether the accused "possessed" this cocaine, and, if so, whether he did so "for the purpose of trafficking".
Evidence
[4] The first of five Crown witnesses was Cpl. Emmett Michael James Fewer. Cpl. Fewer is a member of the R.C.M.P. Although presently posted to Grand Falls Newfoundland, he was in charge of the team that attended the accused’s residence on the date in question.
[5] On June 3, 2009, at 9:20 p.m., Cpl. Fewer, and his team, attended 9282 Highway 10, Nictaux, Annapolis County, Nova Scotia, pursuant to a search warrant. The accused was the target of their investigation, however both the accused and his mother, Pam Coleman were mentioned in the grounds for the warrant that was obtained
[6] The team waited until dark to enter in order to maintain some element of surprise. In addition, since the residence has a long driveway in front which would expose them to view, they decided to use the rear door which abutted a wooded area.
[7] Cpl. Fewer testified that he and the other members of the team were able to open the back door, which was unlocked. They immediately shouted "police", "search warrant",and continued to shout it.
[8] Each member of the team had a specific assignment or objective upon entering the residence. Cpl. Fewer was one of those whose task it was to go through the hallway leading from the rear of the residence and enter the kitchen.
[9] The kitchen was described as a galley style, containing the stove and a sink , with cupboards on both sides of the wall. It is four to five feet in width, and a maximum of 20 feet long. It opens into a small dining area
[10] When he entered the kitchen, Cpl. Fewer saw the accused standing in the dining room area. He was facing the stove, approximately two to three feet away from it.
[11] His mother, Pam Coleman, and another adult female were present as well. All three were standing in an approximately circular fashion in the vicinity of the stove.
[12] Cpl. Fewer walked toward the three adults, and in so doing passed the stove. In an uncovered roaster (or pot) sitting atop the stove, floating in some water therein, was a prescription type pill bottle. This pill bottle contained nine individually wrapped "rocks". The wrapping was tinfoil. The parties have agreed that the rocks were cocaine, specifically, crack cocaine.
[13] There was no furniture between Cpl. Fewer and the stove, and the fact that the pot was without a lid, and the pill bottle was without a label, meant that he could see both the pill bottle and its contents, very clearly.
[14] Of the 16 exhibits tendered by the Crown, Exhibit 15 consisted of a series of 28 photographs. Number ten thereof shows what Cpl. Fewer saw as he passed the stove in the accused ’s kitchen. The pot is clearly visible in this picture on the left front burner of the stove. The other front burner is unoccupied.
[15] In the upper left of this photograph can be seen the hallway leading from the kitchen to the rear door of the residence ‑ the hallway through which Cpl. Fewer and his team had traveled.
[16] Referring to photograph ten, Cpl. Fewer explained that the accused would have been standing to the left of the stove approximately two to three feet away from it. Nothing stood between him and the pot.
[17] Mr. Coleman was directed to raise his hands, which had been previously in the vicinity of his belt or waist. As he complied, it was revealed that he had a one hundred dollar bill in hand. This currency became exhibit 6.
[18] Other items were seized. These included a digital scale, which was found in the kitchen on top of the cupboard, along the wall opposite the stove, and also $235.00 in cash, which was discovered in one of the cupboards.
[19] There was a fourth person in the home that evening. This person was Mr. Coleman’s teenaged son, who was in the living room at the time. Mr. Coleman’s son was not arrested. The three adults were.
[20] As noted previously, the kitchen leads to a small dining area. There are no doors or walls separating the kitchen and dining room areas. Exhibit15, photograph six shows the dining area. It is separated from the kitchen only by a very small partition visible in the far left portion of photograph six.
[21] The three adults were approximately in a semi‑circle, with the accused standing in the bottom left area of photograph number six facing towards the kitchen (and stove). Angela Clowe (the third adult ) was off to his right with her back to the accused (and the stove). Cpl. Fewer saw her back as he entered . The accused would have been the closest to the stove, and (as noted) he was the only one of the three that was actually facing it.
[22] At most, a couple of seconds had elapsed from the time Cpl. Fewer, and the first part of his team, had entered through the rear door, traveled the hallway, entered the kitchen and made these observations as to the situation of the three.
[23] They did not dust for fingerprints. No drug residue was found on the scales. The nine "rocks" in the prescription pill bottle were later weighed and found to be (on average) 0.25 grams each.
[24] While no drug paraphernalia was found on the accused, on the person of Pam Coleman, or in their residence itself, some was found in the pocket of a hoodie on the third adult, Angela Clowe. This paraphernalia included a pipe of the type commonly used to smoke crack cocaine, some zigzag papers, and some razor blades.
[25] What the Crown alleges are weapons were also found in the residence and seized. Cpl. Fewer discussed Exhibit 8, which appeared to be a knife with a metal grip handle, with individual loops through which the fingers can be inserted. This handle is apparently intended to be grasped in a fist, and when this is done, the blade protrudes out of one end of the fist. While the fist is closed, the metal loops cover the knuckles in a manner akin to “brass knuckles”. What was described as a “homemade machete” was also seized, more on which will be said later. These weapons were found in the accused’s bedroom, proximate to his bed,
[26] Cpl. Fewer agreed that he had no idea as to who put the pill bottle into the pot of water, or when, or when the water was put into the pot, and indeed no idea who owns the scales or drug or how long it was there, or even whether the scale was used to weigh contraband or other product. He quite properly conceded that he only knows what he saw when he came into the apartment.
[27] The second crown witness was Richard Paul Blouin who has been a constable with the Kentville police service for the last five years. On June 3, 2009, he was engaged to assist the Annapolis street crime unit to execute a search warrant against the accused at his residence.
[28] Cst. Blouin confirmed that he was part of the entry team that entered the premises from the rear. They entered through the back door, yelling "police" "search warrant", and traversed a short hallway leading from the rear entrance. He took the first left off of that hallway to enter the kitchen. Had he gone to the right he would have entered into a bedroom , and had he continued going straight this would have lead him to the living room. He observed a female (Pam Coleman) in the kitchen, he also made eye contact with the accused who was standing "beside" the kitchen table facing him. Cst. Blouin later clarified that the accused was actually standing between the kitchen table and the stove.
[29] The accused’s hands were initially at the level of his waist or pocket area, and when he was asked to raise his hands it turned out that he had a one hundred dollar bill in his right hand. Cst. Blouin said that he distinctly saw the accused "glance" toward the stove, as the police entered the kitchen.
[30] As he proceeded with the arrest, while standing between the accused and the stove, Cst. Blouin made note of the pot without cover sitting thereon, as well as a clear pill bottle floating in the water inside that pot. He confirmed Cpl. Fewer’s description of the nine "rocks" inside that pill bottle.
[31] In addition to the quick glance from Mr. Coleman towards the stove, the accused had what Cst. Blouin described as a "deer in the headlights" look about him.
[32] He indicated that the accused would have had no difficulty in seeing what was in the pot as there were no obstructions to prevent this. When shown photograph ten of Exhibit 15 Cst. Blouin described the accused’s situation much like Cpl. Fewer did , that is, the accused was standing to the left of the photograph, towards the front of the stove. The accused would have been facing Cst. Blouin and the stove, as the police entered.
[34] There was no heat emanating from the stove. The pill bottle floating in the water in the pot on the stove contained nine rocks, in tinfoil. They could be easily seen.
[35] On cross examination, Cst. Blouin was closely questioned as to the importance of taking accurate notes describing significant facts in the course of an investigation. Cst. Blouin agreed that he had made no reference to the "glance" of the accused towards the stove either in his notes or in his supplementary occurrence report. He described it as more of an "eye glance", rather than one which involved any movement of the head.
[36] At the time of the team’s sudden entrance, the accused was standing close enough to the kitchen table such that he could likely have touched it without moving. At the same time, he was within one to two feet of the kitchen stove, in the estimation of Cst. Blouin, who was insistent that Mr. Coleman could also have grabbed the pot from where he was standing. As earlier noted, Cst. Blouin (in cross) had his attention drawn to the fact that in the occurrence report he described the accused as "standing by the kitchen table". This will be discussed later.
[37] Witnesses three and four were Constable Robert Malloy and Corporal Dale Gaye . They have been members of the R.C.M.P. for twenty‑three years and thirty‑one years respectively.
[38] It was the former who, in his search of the kitchen cupboards, discovered Exhibit 5, consisting of a small, apparently residual piece of tinfoil. This could be described as roughly similar to a long (thin) right angled triangle.
[39] This approximation lacks one important detail. If one pictures a right angled triangle, the flat side that would ordinarily constitute the triangle’s "height" had a small piece clipped out of the corner. About five centimetres in width, approximately in the shape of a square, this missing piece was similar in size to the amount of tinfoil required to wrap a piece or rock of crack cocaine of the size of the samples found in the pill bottle.
[40] Cpl. Gaye testified as to the seizure of the previously mentioned "machete" from the accused’s bedroom . It was found near the accused’s bed tucked into a shelving unit . Picture 22 of Exhibit 15 shows where this "machete" was found.
[41] This weapon was apparently homemade, and seems to have been fashioned from a carpenter’s square approximately two feet long and four inches wide.
[42] What the Crown witnesses described as the composite"brass knuckles/knife" weapon (exhibit 8) and the defence has characterized as a "hunter’s knife" appropriate for skinning and/or cutting up deer carcasses, has been described earlier. This latter was found in a black sleeve, also in the accused’s bedroom, near to his bed.
[43] Cst. Gaye confirmed that the search did not turn up any smoking paraphernalia in the home, or on the person of the accused. There was paraphernalia, as indicated earlier, found on Angela Clowe consisting of cigarette package with razor blades, the aforementioned pipe, a needle package and zigzag cigarette papers.
[44] The final witness for the prosecution was Cpl. Gordon David Armstrong Vail. Cpl Vail has testified both as a lay and expert witness in many cases of this sort.
[45] Cpl. Vail presented an extensive curriculum vitae and was qualified by consent to present expert opinion evidence in relation to crack cocaine, and the trafficking thereof.
[46] He indicated that the facts upon which his opinion is based were obtained from contact with Cst. Fewer, a file review, and from having been permitted to remain in court and listen to the other witnesses as they testified. As was the case with the other witnesses, his evidence will not be recounted herein in its entirety, save what is relevant to this decision.
[47] Cpl. Vail’s attention was drawn to Exhibit 2, which consisted of the pill bottle that had been found floating in the pot of water on the stove, as well as the nine individually wrapped rocks of crack cocaine found therein. He indicated that prescription pills bottles were a common method adopted by dealers when carrying this type of product, as opposed to keeping the stones loose in their pockets.
[48] When asked if there was any significance to the average weight of the rocks seized (0.25 grams) he prefaced his testimony with an indication that drug traffickers habitually short change their customers. For example, the expression "eight ball" is slang for one eighth of an ounce, (or 3.5 grams) of crack cocaine. Cpl. Vail testified that he has seen rocks that had been passed off by dealers as eight balls later found to contain as little as 1.8 grams. He has also seen what were supposed to be 20 rocks (so called, because they are to contain 0.2 grams of crack) weighing as little as 0.12 grams.
[49] The motive for short changing customers is obviously to maximize profit. Many dealers employ this method in order to increase their returns. Another method is to adulterate (or “cut") the product with sucrose , or some other less benign substances.
[50] Dealers generally buy in bulk, and then sell in smaller units. A one kilogram quantity may be purchased at an approximate price of $45,000. If broken down and sold in one gram amounts, such a quantity can yield as much as $55,000 in profit.
[51] Against this background ,Cpl Vail proceeded to state his opinion that the nine individually wrapped rocks in this case, containing an average of 0.25 grams each, were being sold as "40 rocks", in other words, as rocks that were supposed to contain 0.40 grams of crack cocaine. He testified that it would be very common to see rocks of these dimensions, packaged in this way, sold on that basis.
[52] Tinfoil is pretty nearly the exclusive method used by dealers to package rocks of crack for sale. Moreover, individuals who are involved in trafficking stones of crack cocaine at street level, normally do not carry them loosely in their pockets. As indicated earlier, prescription type pill bottles are very frequently used as containers.
[53] Cpl. Vail testified that he had never known an individual to purchase nine "40 rocks" for personal use. The reason for this is relatively simple. Barring exceptional circumstances, to purchase this quantity of drug as nine ( supposedly) 0.40 gram rocks would be too expensive. Purchasing an "eight ball", or 3.5 gram amount, would be much cheaper.
[54] When asked on cross‑examination if it was conceivable for someone to purchase nine rocks for individual use if the dealer didn’t have an eight ball at hand, Cpl. Vail indicated that this still would not make any sense, unless the dealer were to sell it at a discount. While conceding that such a purchase is possible, he opined that it was not very probable.
[55] Cpl. Vail also discussed Exhibit 3, the digital weigh scale. His indication was that this was a type of small electronic weigh scale, sensitive to the one hundredth of a gram amount (or 0.01 grams) that is typically used by drug traffickers. He indicated that this was consistent with what he said earlier, in that typically traffickers will accurately weigh their product, and then deliberately short their customers.
[56] He went on to say the digital scales sensitive to the one hundredth gram amount (ie. 0.27g, 0.13g), can be clear indicators that individuals are trafficking. However, like any other piece of evidence, it is something that must be considered along with everything else that is seized and all other relevant facts and circumstances. He stated that individual users generally never question the amount proffered to them by the dealer within the context of a crack cocaine purchase. As a consequence, most crack users do not have scales in their possession.
[57] As mentioned previously, Cpl. Vail’s opinion was based, in part, upon the discussions that he had with Cpl. Fewer , as well as from from having reviewed the case file notes and materials. He had been advised that the scale would weigh to the one hundredth of a gram. Neither he nor (apparently) the other officers had tested the scale in order to verify this. I will return to this point later.
[58] Another issue relating to the digital scale was commented upon by Cpl. Vail, that being the negative results garnered when it was tested for residue of a controlled substance . Cpl. Vail indicated that in his experience it was not uncommon for scales to test negative for a controlled substance. Many drug traffickers are very careful and, for example, would carefully clean their equipment such as scales after use.
[59] When asked about Exhibit 5, which consisted of the aluminum tinfoil found in the kitchen cupboard noted earlier, Cpl. Vail could only attest to the obvious ‑ that the exhibit was tinfoil and that tinfoil was also used to wrap the nine individually wrapped stones in the subject pill bottle. As to whether the tinfoil used to wrap the stones was the same as the tinfoil found in the cupboard, he could not, of course, say.
[60] He did indicate, however, that the dimensions of the very small piece cut out of the end of the tinfoil were such that it could have been used to wrap a"rock"of crack.
[61] Exhibits 7 and 8 consisted of the so‑called "knife/brass knuckles"composite and "homemade machete" found in the accused’s bedroom. Cpl. Vail testified that it was typical for police to find weapons in traffickers’ residence, given their need to protect themselves from, for example, people coming in to steal product. Not only rival drug dealers, but also users may attempt to do so. He further indicated that police officers often seize rifles and hand guns on drug raids, and that he would classify the machete (Exhibit 8) as such a weapon too, adding that he wouldn’t know of someone not involved in the drug sub‑culture who would keep such things by his bed.
[62] With respect to the money found on the scene, Exhibit 6 was the one hundred dollar bill found in Mr. Coleman’s hand upon the entry of the police into the kitchen area of the dwelling. It was revealed when Mr. Coleman was required to raise his hands pursuant to the police instruction to do so. Cpl. Vail indicated that this is the amount for which you would expect to purchase a gram quantity of crack cocaine.
[63] In relation to Exhibit 4, which consisted of $235 dollars found in the kitchen cupboard, he opined that this "could" be consistent with drug trafficking. Whether one is trafficking in kilograms, ounces, or some fractions thereof, it is almost exclusively a cash business. All dealers keep Canadian currency on the premises or on their person, whether to “make change”,or, in the case of larger amounts, because it is difficult to make large deposits at the bank without raising suspicion.
[64] With respect to the absence of smoking devices or other drug use paraphernalia being found on anyone except Angela Clowe (a visitor to the premises) Cpl. Vail pointed out that he of course does not know the relationship, if any, between the accused and Angela Clowe. He went on to indicate that while razor blades, such as those found on Ms. Clowe, can sometimes be used to chip smaller amounts off of a block of crack, they are generally user paraphernalia. Further, pipes (again like those found on Ms. Clowe’s person) are the method of choice when ingesting crack cocaine.
[65] He added that typically, people who traffic crack cocaine do not use it themselves. This is because of the highly addictive nature of the substance. A user/dealer would likely become an addict through use, and this would make severe inroads upon the profit that may otherwise be derived from exclusively dealing it.
[66] Cpl. Vail stated that he had never known a personal user of crack cocaine to have a set of scales. He did not intend to be taken as saying that it cannot happen, just that in his own personal experience, he had never seen it. This distinguishes crack users from, for example, marijuana users, who would often , in his experience, have scales available with which t o weigh product intended for their personal use.
[67] Cpl. Vail considered all of the factors in this case, including the material seized and the circumstances under which it was found, and testified that he was of the opinion that the crack seized on the premises of the accused and his mother was destined for sale and possessed for the purpose of trafficking. He further indicated that he would have been of the same opinion even if only one rock had been found, because of all of these surrounding circumstances.
[68] Cpl.Vail’s testimony concluded the Crown’s case.
[69] The accused elected not to call evidence.
Findings and Analysis
[70] At all times it is incumbent upon the Crown to prove its case against the accused beyond a reasonable doubt. That burden never shifts.
[71] The accused is presumed to be innocent from the outset. There is no requirement that he testify or offer evidence of any sort to rebut the Crown’s case, although he may do so. He is completely entitled to put to the Crown “You say I’m guilty of this crime, lets see if you can prove it.”
[72] Because no evidence was presented to the court by an eye witness who claimed to have seen the accused with the crack cocaine on his person, much less that he sold or attempted to sell any of it, the Court must consider whether the Crown has made out its case circumstantially.
[73] Before confronting that question directly, it is important to make a few observations with respect to the evidence that was adduced by the Crown.
[74] To begin, it is convenient to refer to the post- trial submissions of Mr. Starr dated February 2, 2011 at pages 2-3 thereof, where he states:
"The Crown, or at the very least the R.C.M.P., attempted to portray to the Court that no evidence of drug paraphernalia consistent with personal use was found in the residence or on anybody arrested at the scene. At least two police officers answered in the negative when asked by the Crown whether any such evidence was found. However, on cross‑examination both Cpl. Gaye as well as Cpl. Fewer conceded that Cst. Miner had found drug paraphernalia in the pocket of Angela Clowe, one of the three people who were arrested at the scene: (emphasis in original).
[75] And then at Page 5:
"Once again, it is very interesting to note that the Crown, for unknown reasons led no evidence of the drug paraphernalia found in the pocket of Angela Clowe’s hoodie. More specifically, the Crown, through the testimony of the R.C.M.P. attempted to portray to the Court that no such evidence was found. It is puzzling that Cpl. Gaye and or the Crown did not even tender such evidence before the Court. Why would the Crown attempt to leave the impression with Your Honour that no such evidence was found?! (Emphasis in original)
[76] Mr. Starr goes on to indicate that:
"This could clearly be construed as a deliberate attempt by the R.C.M.P. to hide or conceal relevant evidence from the Court."
[77] With respect, I do not agree. Cpl. Fewer was asked in cross‑examination whether it was true that no drug paraphernalia had been found on the accused. He concurred with that assessment. He was then asked whether he would agree that some drug paraphernalia had been found in the pocket of a hoodie on Angela Clowe including a pipe of the type commonly used by people wishing to ingest crack cocaine. He agreed that this was the case, without hesitation.
[78] As previously indicated, Cpl. Fewer was the very first witness called in this case. I found nothing inappropriate in his demeanour, or in his testimony so as to suggest an attempt to hide or conceal relevant evidence. As was clear from from the tenor of its cross‑examination, the defence had knowledge of these items that were found on Ms. Clowe’s person. In the ordinary course of events this information would be provided as part of pre‑trial disclosure by the Crown.
[79] While Cpl Gaye did indicate that they didn’t seize any smoking devices while the search was under way, the surrounding context of his evidence was such that he was taken to have intended to say that no such devices were found on the premises, which is what he was asked on direct examination.
[80] It is true that, on cross -examination, Cpl Gaye was asked whether any such devices were found on the premises ,or on any of the persons on the premises. He answered in the negative.
[81] My impression was that Cpl. Gaye did not listen to the question carefully enough to catch the words "or any of the persons on the premises" that had been added onto the end of it. As indicated, based on the answers that he had given earlier, my impression was that he was intending to speak to the absence of drug paraphernalia on the premises, when he provided these answers.
[82] Cpl. Gaye clarified quite readily, once he was referred to the Exhibit Flow Chart, that drug paraphernalia had been found, not on the premises themselves, but rather on the person of Angela Clowe the visitor to the premises. I did not interpret his evidence, or that of any of the other officers who testified, to be an attempt on their own part, or on the part of the Crown, to mislead the Court in any way. The existence of this paraphernalia was clearly made available to the Defence, which made ample use of it during cross examination.
[83] Another issue arose as a result of Cpl. Vail’s assumption that the scale weighed to the one hundredth of a gram when he gave his opinion. While he testified, the digital scale was inoperable. This appeared to have resulted from the batteries having lost their charge .
[84] After he left the stand, defence counsel inserted new batteries. Once operational, the obvious test was performed. It was revealed that the digital scale was sensitive only to the tenth, rather than to the one hundredth of a gram.
[85] Notwithstanding this, I did not consider that this detracted from Cpl. Vail’s opinion, which, on the whole, I accepted . While he did indicate that possession of digital scales weighing to one hundredth of a gram (which is what he supposed Exhibit 3 to be) is consistent with drug trafficking activity, I did not take him to be suggesting that a scale only accurate to the tenth of a gram was inconsistent with such activity. Certainly, it was open to the accused to put this question to Cpl. Vail directly, particularly in light of the demonstration that his Counsel later performed with the fresh batteries.
[86] Moreover, it is quite evident that although the nine rocks seized by the police weighed an average of 0.25 grams each, their individual weight fluctuated between 0.2 and 0.3 grams. No stone was less than 0.2 grams, and none weighed as much as 0.3 grams. Where they all varied was in the one hundredth of a gram spot. This is consistent with their having been weighed on a scale that was not capable of weighing to the one hundredth of a gram.
[87] Moving to another point , Cst. Blouin had indicated in his notes that he observed the accused standing "by the kitchen table". His direct evidence described the accused as standing by the stove within arms reach of the pot and the contents. Having carefully reviewed Exhibit 15, and in particular, photos 6 and 10 thereof, I am satisfied that these are not mutually exclusive descriptions. The entire kitchen/ dining room area does not encompass a very large area, and the stove, in addition to being directly adjacent to the kitchen entrance leading from the hallway, as earlier described, is also, on the other side, immediately adjacent to the partition between the kitchen and dining room area, the table being situate in the latter.
[88] Alternatively, I should also indicate that I did not attribute any significance to the suggestion of Cst. Blouin that he saw the accused glance in the direction of the pot on the stove upon the police entry into the kitchen, or to his failure to refer to such a glance in his report or notes. In my view, such a "glance" signifies nothing. It would be equally consistent with the accused having placed the drugs in the pot himself, or his having suddenly become aware that someone else had placed it there moments before the police arrived in the kitchen. To put it in the vernacular, it could mean “Oh no, they’ve caught me”, or “Oh no, who just threw that in there?”, among other things.
[89] Returning to the elements which the Crown must establish beyond a reasonable doubt in this case, the Crown must show that the accused:
(i)Possessed the controlled substance; and
(ii)That such possession was for the purpose of trafficking in it.
[90] The authorities are very clear that possession involves knowledge of the prohibited substance, and some measure of control with respect to it.
[91] This flows directly from s. 4(3)(a)(ii) of the Criminal Code which reads as follows:
4(3) For the purposes of this Act,
(a) a person has anything in his possession when he knowingly
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;
[92] The circumstantial nature of the Crown’s case has been noted earlier. I am therefore mindful at all times of the direction provided by the Supreme Court of Canada in R. v. Cooper (1977) 34CCC (2d) 18 per Ritchie J. at Page 33:
"... before basing a verdict of guilty on circumstantial evidence (the trier of fact) must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable evidence to be drawn from the proven facts."
[93] While this is not exhaustive, some of the facts that I have before me relating to the issue of possession of the drugs by the accused are the following:
(1) The drugs were found in the residence of the accused (albeit, a residence that he shared with his mother, Pam Coleman).
(2) It took the police a couple of seconds to traverse the distance between the back entrance and the kitchen/dining room where the accused and drugs were situate.
(3) The stove, and the kitchen wall against which it was situate, would have been to the immediate left of the officers upon entry to the kitchen from the hallway.
(4) Of the three adults found in the kitchen/dining room area, the accused was the closest to the stove. He was within arm’s reach of the pot (on the stove) in which the pill bottle containing the drugs was found. He was facing it, while Angela Clowe was a foot or two further away with her back to the stove, as was Pamela Coleman, who was not facing the stove either, but rather standing at an angle in relation to it.
(5) Upon entry to the kitchen, the officers noted the accused with his hands in the vicinity of his waist. When asked to raise his hands, they noted that he had a one hundred dollar bill in one of them.
(6) No drug paraphernalia (that is, paraphernalia consistent with the use or ingestion of crack cocaine or any other drug) was found on the person of the accused or his mother or in the premises.
(7) The only items consistent with drug use found in the area were located on the person of Angela Clowe, who was apparently a visitor to the premises.
(8) There was no furniture or other impediment between Mr. Coleman and the stove/ pot/ pill bottle. He was facing in the direction of the stove when the police walked in, and would have had an unobstructed view not only of the clear pill bottle, but its contents as well.
(9) The contents of the pill bottle consisted of nine individually wrapped "rocks" of crack cocaine, average weight being 0.25 grams each.
(10) The two weapons, namely, the knife /brass knuckles, and the homemade machete, were both found in the accused’s bedroom, very close to his bed.
[94] I must therefore determine on the basis of the entirety of the Crown’s case, including those facts summarized above, whether I am satisfied, first, that the accused was in possession of the nine crack cocaine tablets found floating in the pot of water on the kitchen stove, and if so, whether such possession was for the purpose of trafficking.
[95] As stated in R. v. Marciszyn [1991] S.J.N.O. 4460 (Q.B.):
"Of course, the law does not require the Crown to prove knowledge by direct evidence. Common sense dictates that people normally know the natural consequences of their conduct. It is necessary to look at all the surrounding circumstances in order to decide whether or not the accused knew the drugs were at his residence and to decide whether or not he exercised control over them. The accused is entitled to the benefit of any doubt.
[96] I must weigh the circumstantial evidence in this case in the manner prescribed by R. v. Cooper (supra). The accused did not testify or call any other evidence. I have earlier emphasized that the accused carries no burden of proof, and is presumed to be innocent. That said, is there any significance at all to his failure to testify in this type of case?
[97] In R. v. LePage [1995] 95 C.C.C. (3d) 385 (S.C.C.) the accused rented a residence which he in turn sublet to others. All three men had the use of the living room and kitchen areas of the house. The police executed a search warrant and discovered a clear plastic bag containing sheets of blotting paper impregnated with LSD.
[98] At the time of the police entry into the premises, the accused was in the living room with his girlfriend. The bag containing the drugs was found under a couch in the living room where the accused and his girlfriend had been sitting.
[99] The police also found LSD blotter paper located in stereo speakers in one of the other tenants bedrooms, very similar in design to that found under the couch. In addition, a five gram vial of hash oil was also discovered in that other tenants room, along with ten hits of LSD and a wallet that the other tenant was using. This too was of the same design as that found in the living room. In the same wallet the police also discovered a list of names with various amounts of money opposite each name. The other tenant claimed the bag containing the drugs found under the living couch, and also admitted that he sold the drug in bulk lots of 25 hits. He also signed a written statement which he later recanted. In the trial of the accused, he testified for the Crown and stated that the drugs belonged to the accused. Fingerprints of the accused were also found on the bag containing the drugs found in the living room. The accused did not offer evidence.
[100] The majority in of the Supreme Court of Canada in Lepage (supra), in overturning the appellate decision and re‑instating the trial judge’s finding of guilt, cited with approval ( at page 397) the Ontario Appellate decision in R. v. Johnson (1993), 79 CCC (3d) 42 at pages 49 to 50 thereof:
No adverse inference can be drawn if there is no case to answer. A weak prosecution case cannot be strengthened by the failure of the accused to testify. But there seems to come a time, where...circumstantial evidence having enveloped a man in a strong and cogent network of inculpatory facts, that man is bound to make some explanation or stand condemned. The point, it seems to me, can only be the point where the prosecution’s evidence, standing alone, is such that it would support a conclusion of guilt beyond a reasonable doubt. Viewed that way, it would be better said that the absence of defence evidence, including the failure of the accused to testify, justifies the conclusion that no foundation for a reasonable doubt can be found on the evidence. It is not so much that the failure to testify justifies an inference of guilt, it is rather that it fails to provide any basis to conclude otherwise. (Emphasis in LePage) When viewed in that fashion to the strength of the Crown’s case, failure to testify is no different than the failure to call other defence evidence.
If the Crown’s case cries out for an explanation, the accused must be prepared to accept the adverse consequences of his decision to remain silent...but the failure to testify cannot be used as simply one of the circumstances from which the guilt of the accused can be inferred...failure to testify is not an independent piece of evidence, to be placed on the evidentiary scale. It is rather a feature of the case which may assist in deciding what inference should be drawn from the evidence adduced. ...
[101] After citing the above referenced passage from Johnson (supra), the majority in LePage (Supra) went on to say:
In this case, since the totality of the evidence enabled the trial judge to infer guilt beyond a reasonable doubt, the absence of any explanation from the respondent merely failed to provide any basis to conclude otherwise.
[102] In the present case, Defence Counsel argues that there are many other reasonable inferences that can be drawn from the facts, other than that of the guilt of the accused. For example, in his written submission dated February 2, 2011, Mr. Starr indicates at Paragraph 19-20 :
The evidence, at the very least, is equally consistent with Pam Coleman putting the pill bottle in the pot of water just before the R.C.M.P. arrived. If she did so, the accused may not have had any knowledge as to what was in it. Clearly, he would have had absolutely no control over such a situation.
It also equally consistent for Angela Clowe to have put it there. It is important to remember that she is the only one with any drug paraphernalia on her person.
[103] Both in addressing this argument, and in determining whether the Crown’s case supports an inference of the nature that it urges me to draw, it is important to bear in mind the difference between an inference and mere conjecture. Our Court of Appeal has offered some guidance in this regard. For example, in R. v. German, 33N.S.R. (2d) 565, at paragraph 12, Justice Pace stated:
... the only fact which appears relevant to the inference drawn by the learned trial judge is a finding of the marijuana in the area of the accident. The question remains whether this evidence in the circumstances before us is sufficient to sustain the inference. Lord MacMillan in Jones v. Grant Western railroad Company (1931) 144 LT 194 at page 201 said:
‘The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but it is of no legal
value, and its essence is that it is a mere guess. Since inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable inference, it may have the validity of legal proof. ’
[104] Could Pamela Coleman or Ms Clowe have put the pill bottle in the pot of water just before the R.C.M.P. arrived or, by extension, quickly placed it there after the R.C.M.P. had entered the back door but before they had reached the kitchen? Either one of those scenarios is possible, considered in isolation.
[105] I must, however, consider some of the other facts. The accused was the closest to the cocaine found on the stove, in fact within arm’s reach of it. He possessed a one hundred dollar bill in his hand which was revealed when the police asked him to raise his hands. He was close to the only person on the premises who did possess drug paraphernalia, namely, Angela Clowe, which paraphernalia was extremely consistent with that to be expected on the person of a user/ purchaser of crack cocaine. The accused had at least two weapons in close proximity to his bedside. The nature of such weapons, and the commonality of the use of weapons by drug dealers, were subjects of earlier testimony from Cpl. Vail. There was also some tinfoil (with the small portion clipped out of the corner) and a digital weigh scale found in the kitchen.
[106] No one piece of circumstantial evidence is conclusive. Each and every fact, if treated in isolation, may be explained away. Therefore, no one piece, on its own, proves anything. It is only when that piece is viewed within the totality of all of the other “pieces”of evidence that it becomes part of the raw material from which an inference of guilt may, or may not, be drawn.
[107] After considering the evidence in its entirety, I am left in no doubt. The only reasonable inferences available to me are that the accused possessed the nine individually wrapped rocks of crack cocaine and moreover, that he possessed them for the purpose of trafficking.
[108] The accused is therefore guilty as charged.